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33 Cards in this Set
- Front
- Back
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What are the three problems that may arise in Agency law? |
(1) The liability of the principal to Third Parties for the Torts of an agent (2) The liability of the prinicpal to third parties for Ks entered into by an agent (3) Duties which agents owe to principals. |
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What is the rule for when a principal will be vicariously liable for the torts of its agent? |
(1) There must be a principal-agent relationship (2) The tort must be committed by the agent within the scope of that relationship |
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What are the requirements of a principal-agent relationship - - i.e. what must there be for one to be created? |
(1) Assent - (btw a principal who has capacity and the agent) (2) Benefit - (To the Principal) (3) Control - (Over the agent by the principal, like supervision) |
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When is a principal liable for a sub-agent--the agent's agent? |
Only if there is Assent, Benefit, and Control between the sub-agent and the principal. (Generally no vicarious liability for sub-agents) |
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What is the key distinction between an agent and an independent contractor (i.e. what is the reason there is no vicarious liability generally for ICs) |
The pricipal has no right to control an IC because it does not have a right to supervise. (Though there are exceptions for inherently dangerous activities) |
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What are the two main exceptions to the rule that a principal is not vicariously liable for Independent Contractors? |
(1) Inherently Dangerous activities (2) Estoppel - If the Principal holds the IC out to be its agent and there is reliance. |
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What are the scope of relationship factor's in determining if an agent's tort was within the scope of employment? |
(1) Conduct of the kind the agent was hired to perform (2) Conduct occurred "on the job" (not a frolic) (3) Agent's intent to benefit prinicpal |
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(1) What is the general rule for an Agent's Intentional Torts and (2) What are the exceptions? |
(1) Principal is not liable for an agent's intentional torts (2) Intentional torts are "within the scope" when (a) Authorized by the principal; (b) Natural for nature of employment; OR (c) Motivated by desire to serve principal |
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What is the general rule for when a principal is liable for a contract an agent entered into? |
A principal is liable for a contract entered into by an agent ONLY if the principal authorized the agent to enter into the contract. |
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What are the four types of Authority where an Agent's contract binds the principal. |
(1) Actual Express Authority (2) Actual Implied Authority (3) Apparent Authority (4) Ratification |
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What is the rule for how a principal may give its agent actual express authority to contract on its behalf? |
Actual express authority may be oral unless the K must be in writing, in which case the authority must also be in writing. |
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What are the three ways that Actual Implied Authority for an agent to contract on behalf of principal may be granted? |
(1) Necessity - (tasks necessary to complete an express task) (2) Custom - (tasks customarily performed by one with agent's title or position) (3) Prior dealings btw principal and agent - (prior permission) |
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What is the rule for an agent to have Apparent Authority to K on behalf of the principal? |
(1) The principal is "cloaked" with the appearance of authority (2) 3d Party reasonably relies on that appearance |
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What is the rule for how a principal will be liable for a K entered into by an agent under Ratification? |
(1) Principal must have had knowledge of ALL MATERIAL FACTS (2) Principal accepts the K's BENEFITS Exception: Ratification CANNOT alter terms of the K. |
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What is the rule for liability against an agent for an authorized contract? |
The agent is free from liability if authorized to enter the K UNLESS the principal is undisclosed or partially disclosed. |
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What duties does an agent owe to a principal? |
- Care - Obey reasonable instructions - loyalty May NEVER self deal; usurp principal's opportunity, or make secret profits |
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(1) What is the definition of a General Partnership? (2) How is it formed? |
(1) An association of 2 or more persons carrying on as co-owners of a business for profits. (2) No formalities required, but contribution of money or services for a share of profits is PRIMA FACIE evidence of a GP. |
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What are the liabilities partners in a General Partnership owe each other? |
Liability is the same as Agency Principals: - Torts in Scope of Partnership Business - Authorized Contracts Amount is each partner is personally liable for ALL debts of the partnership and each other's torts. |
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What is an incoming partner's liabilities in a General Partnership for pre-existing debts? |
Not liable, but the $ paid to buy in may be used to satisfy prior debts. |
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What is an ex-partner's liability for subsequent debts of a a General Partnership? |
Liability remains until: (1) actual notice is given to all known creditors and (2) publication notice is given to all future creditors. |
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How do you determine what is a partnership asset? (7 Factors) |
(1) Source of the funds (2) Use of the property (3) Improvements to property (4) Relation of property to the bus. of prtnrshp (5) Title to the property (6) Treatment of property in the "books" (7) Payment of maintenance costs |
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If no agreement exists to the level of control in a General Partnership, how is control established? |
Equal control, regardless of percentage of contributed money and shared profits. |
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How may a partner get a salary in a partnership? |
By express agreements |
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How are profits and losses distributed in a general partnership |
By agreement, and if no agreement then equally |
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When does a General Partnership dissolve? |
Upon any material change in the partnership -- i.e. by death or withdrawal of a partner |
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What is the priority of Distribution when a General Partnership is winding up? |
(1) Outside Creditors get paid first (2) Inside Creditors (partners who loaned $) (3) Capital contributions by partners (4) Profits or losses distributed |
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What is the definition, or in other words the make-up, of a Limited Partnership? |
At least 1 GP and at least 1 LP. |
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How do you form a limited partnership? |
Must (i) FILE with the state (ii) a limited partnership certification (iii) that lists all general partners |
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What is the difference between a General Partner and a Limited Partner |
A general partner remains liable for all, but they have control/management of the partnership A limited partner is not liable for the debts and obligations of the partnership, but also may not control the partnership without giving up LP status |
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(1) What is a Registered Limited Liability Partnership? (RLLP) (2) What is the main difference for General Partners in an RLLP? |
(1) An RLLP is a GP or an LP that is engaged in professional services. (2) No partner, even a GP, is liable for the debts and obligations of the partnership |
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How do you create a Registered Limited Liability Partnership? |
(i) File certification of registration with the State (ii) LABEL cert as RLLP (iii) SPECIFY profession |
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What is an LLC? |
Hybrid between partnership and Corp. where the owners have the same type of limited liability as shareholders and the benefits of partnership taxes. |
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How is an LLC formed? |
(1) File articles of organization (2) Publish a summary of the articles once a week for at least 6 weeks in a row (3) Adopt an operating agreement |
